P. v. Franco
Appellant Isaul Esquivel Franco contends that his conviction for first degree murder must be reversed because the trial court failed to instruct sua sponte on imperfect self-defense and his counsel failed to request an instruction on provocation as a basis for reducing first degree murder to second degree murder. In addition, with respect to the sentence imposed, he contends (1) the separate term imposed for discharge of a weapon that proximately caused great bodily injury or death violated the multiple conviction rule and principles of double jeopardy; and (2) the separate term imposed for committing an offense for the benefit of, at the direction of and in association with a criminal street gang did not comply with the governing statute. Respondent agrees that as appellant was sentenced to a term of 25 years to life for first degree murder, he was not subject to a separate term for the gang allegation under the interpretation of the governing statute set forth in People v. Lopez (2005) 34 Cal.4th 1002, 1004.
Court conclude that no instruction was required on imperfect self-defense or provocation and that the separate term for the weapon enhancement was properly imposed. Court agree with the parties that the separate term for the gang enhancement should not have been imposed.
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